Download 4. views regarding specific provisions of the proposed MCA

STARHUB SUBMISSION
ON THE PROPOSED MODEL CONFIDENTIALITY AGREEMENT (“THE MCA”)
PUBLISHED PURSUANT TO SUB-SECTION 5.3.3 OF
THE CODE OF PRACTICE FOR COMPETITION
IN THE PROVISION OF TELECOMMUNICATION SERVICES
1.
DESCRIPTION OF THE COMMENTING PARTY AND ITS INTEREST IN THE
PROCEEDING
1.1
Description
StarHub Pte Ltd and StarHub Mobile Pte Ltd were awarded a Public Basic Telecommunication
Services (PBTS) licence and a Public Cellular Mobile Telephone Services (PCMTS) Licence in
Singapore on 5 May 1998.
StarHub launched its commercial PBTS and PCMTS services on 1 April 2000. StarHub acquired
CyberWay (now StarHub Internet) for the provision of Public Internet Access Services in
Singapore on 21 January 1999.
This response to IDA’s invitation for comments on the MCA represents the views of the StarHub
group of companies, namely, StarHub Pte Ltd, StarHub Mobile Pte Ltd and StarHub Internet Pte
Ltd.
1.2
Interest in the Proceedings
StarHub has been dealing with the incumbent, SingTel, for about two years and is in a unique
position to comment on issues that a new entrant is likely to face in entering the local
telecommunications market.
StarHub supports appropriate regulatory intervention to achieve efficient, competitive provision of
services in the telecommunication market in Singapore, as policy intends.
2.
SUMMARY OF THE COMMENTING PARTY'S POSITION
StarHub welcomes the opportunity to comment on the proposed MCA. StarHub applauds the IDA
in ensuring that all licensees and interested parties are able to comment on the provisions.
3.
GENERAL COMMENTS
StarHub finds that the MCA to be generally fair in seeking to protect Confidential Information on a
mutual basis, and recognising that that Requesting Licensees have to disclose equally
confidential and commercially sensitive information as the Dominant Licenses.
However, the MCA could be improved in specific areas as set out in the following paragraphs,
particularly in relation to Clauses 9 and 11.
4.
VIEWS REGARDING SPECIFIC PROVISIONS OF THE PROPOSED MCA
Our detailed comments in relation to specific Clauses of the MCA are as follows. We have also
marked up our suggested amendments to specific Clauses.
Clause 2(v)
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StarHub is of the view the term “marketing information” is vague and the scope and meaning is
uncertain. StarHub suggests that it is amended to “marketing plans and strategies” as these are
more likely to contain confidential commercial information.
Further, “brochures, printed matter, rates and rate tables” are information usually disseminated
into the public domain for the purpose of providing the public of relevant information of a party
and it is not logical that they should be classified as confidential.
StarHub therefore proposes that 2(v) is amended as follows :
“(v)
marketing plans and strategies information, brochures, printed matter,
rates and rate tables;
Clause 5
The purpose for which the Confidential Information can be used is narrow, being confined only to
negotiations for interconnection. The Receiving Party should be allowed to use the Confidential
Information for any other related interconnection purposes as may be agreed by the parties.
Below is the proposed revised clause :
5.
Neither Party shall use or copy the Confidential Information of the other Party
except in connection with that Party’s negotiations with the other Party of an
interconnection agreement under the COP or for such other reasonable purposes
related to the provision of the Interconnection Related Services (as defined by
the COP) between the parties as both parties may agree.
Clause 6
Likewise, the purpose set out in the second last sentence of Clause 6 should be broadened.
Below is the proposed revised clause :
6.
…..other than for the purposes of the negotiations between the Parties or for
such other reasonable purposes related to provision of the Interconnection
Related Services (as defined in the COP) between the parties as may be agreed
by the parties, without such Disclosing Party’s prior written consent.
Clause 7
The use of the information by a Disclosing Party within its own organisation should be restricted
to only the provision of the Interconnection Related Services.
Hence, Clause 7 should be
amended as follows :
7.
Neither Party shall disclose or communicate, cause to be disclosed or
communicated or otherwise make available Confidential Information to any third
party other than that Party’s directors, officers, employees, agents, contractor,
representatives or advisers to whom disclosure is necessary (Authorised
Persons) for the purpose only of negotiating the interconnection agreement. The
Receiving Party shall adopt appropriate procedures to ensure that the
Confidential Information is not used for reasons other than interconnection
including but not limited to the development or marketing of other
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telecommunication services or equipment by the Receiving Party or its Related
Corporations.
Clause 8
Please see comments on Clause 9 below :8.
A Party may disclose the Confidential Information of the other Party to any
professional adviser, including but not limited to legal and financial advisers, only
to the extent necessary for that adviser to provide advice or protect the rights of
the Party under this Agreement. Such advisers shall be deemed to be
Authorised Persons as defined and subject to Clause [10] below.
Clause 9
The restriction on Clause 9 should be deleted. This clause provides the means by which the
Disclosing Party is able to obtain commercially sensitive information on the financial plans and
affairs of the Receiving Party because it provides that the Disclosing Party must be satisfied of
the identity of bankers and financial advisers to whom the information will be given and the scope
of the disclosure before consent to the disclosure will be given. This goes beyond the need for
protection of the Confidential Information. Disclosure to appointed financiers and appointed
bankers should fall within the category of advisers under Clause 8 where the necessary
protections have been put into place as set out in the proposed amendments.
StarHub is of the view that Clause 9 should be deleted. Please refer to amendments in Clause 8
above for the proposed amendments to be put in replacement of Clause 9.
Clause 11
Clause 11 permits SingTel, as the Receiving Party to pass the Confidential Information of a
Requesting Licensees to SingTel’s Related Corporations eg SingTel Mobile without having to first
inform the Requesting Licensee of such disclosure.
Firstly, it is rather unusual that a Dominant Licensee who owns and operates all infrastructure
over which the Interconnection Related Services are provided, would have to enlist the
assistance of its Related Corporations to carry out its interconnection obligations. An explanation
of this requirement on the part of the Dominant Licensee would be most helpful to all Requesting
Licensees.
Further, the permission granted under Clause 11 would operate in a competitive environment
where SingTel’s Related Corporations are direct competitors of the Requesting Licensee. These
Related Corporations of SingTel would find that they hold information that could be used to their
own competitive advantage against the Requesting Licensee even though the information
provided was intended only for the use of interconnection purposes. StarHub is of the view that
Clause 11 as it stands will not be favorable to the Requesting Licensee and recommends that the
permission is restricted. Where disclosure to a Related Corporation is required, the Receiving
Party must first seek the prior written consent of the Disclosing Party and identify the Related
Corporation, the scope of information to be disclosed and the reason for the disclosure. Only if
the Disclosing Party is satisfied with the need for the disclosure and that the necessary
safeguards have been put into place, that the disclosure can be made.
We set out our proposed amendments below:
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11.
Where a A Receiving Party may disclose Confidential Information to a Related
Corporation to the extent necessary to requires a Related Corporation to adopt
and implement any of its obligations under an interconnection agreement made
between the Parties pursuant to the COP, the Receiving Party shall first inform
the Disclosing Party of the identity of the Related Corporation, the precise
information to be disclosed and the reasons for required disclosure to that
Related Corporation, and may only make disclosure to the scope and extent
permitted by the Disclosing Party in writing, provided always that subject to the
Related Corporation undertakesing to comply with obligation to use the
Confidential Information for interconnection purposes only and to maintain its
confidentiality equivalent to those contained in this Confidentiality Agreement.
Clause 12
Reference to Clause 13(f) should be Clause 14(f).
We set out the amended provision below :
12.
Save as provided under clause 134(f)….
Clause 14
Clause 14(e) is drafted too widely as it allows for disclosure of any interconnection agreement.
The clause should be deleted.
It would protect the interest of the Disclosing Party if provisions are put in place for prior notice to
be given where possible, to provide the Disclosing Party the opportunity of objecting to the
disclosure. StarHub proposes that the Clause be amended as follows :
14.1
Except as otherwise provided …
….
d)
the disclosure is to an emergency organisation; and
(e)
the disclosure is made to any arbitrator or expert appointed o resolve
disputes under an itnerconnection agreement made pursuant to the COP; or
(f)(e)
14.2
the disclosure….court of law.
Prior to any disclosure under Clause 14.1 being made, where possible, the
Receiving Party shall provide the Disclosing Party with as much notice as is
reasonable or practicable in the circumstances in order to allow the Disclosing
Party an opportunity to raise any reasonable objections or to take any measures
with the relevant authorities as may be necessary.
Clause 15
This clause goes against the whole intent and purpose of the MCA as it allows Receiving Party to
disclose to third party and thereafter inform the Disclosing Party by which time no objections can
be effectively raised. This clause should be deleted.
Clause 21
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This should terminate only to the extent that it has been superceded by the interconnection
agreement. We set out our proposed amendment below :
21.
This Agreement shall terminate upon execution of an agreement for
interconnection between the parties pursuant to the COP to the extent that it has
been superceded by the agreement for interconnection, or by written Agreement
between the parties.
Conclusion
StarHub believes that the proposed amendments will improve the MCA and facilitate
interconnection negotiations between the parties.
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